UK Social Security and Child Support Commissioners' Decisions

 


[2005] UKSSCSC CPC_1035_2005 (22 September 2005)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(ii) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Leeds appeal tribunal, held on 1 February 2005 under reference U/01/013/2004/02293, because it is erroneous in point of law.

I make findings of fact and give the decision appropriate in the light of them.

I FIND as fact that the claimant had not been resident in the United Kingdom for a period of 5 years at the date when her claim for a state pension credit was decided.

My DECISION is that the claimant is not entitled to a state pension credit on her claim made on 1 July 2004.

The issue

2. The issue in this case is whether the claimant remained resident in the United Kingdom during her lengthy periods of absence in Pakistan.

The facts

3. The facts of this case are not in dispute. The claimant is a citizen of Pakistan. Her son lives in England with his family. The claimant was given leave to enter the United Kingdom on the basis of a maintenance undertaking given by her son. She entered on 4 October 1996. She had previously visited this country once.
4. Since October 1996, the claimant has travelled to and fro between Pakistan and the United Kingdom in order to look after her parents. The periods for which she was in Pakistan were:

1 March 1998 to 29 July 1997

30 July 2000 to 21 October 2001

15 July 2002 to 2 May 2004

5. On 1 July 2004, the claimant made a claim for state pension credit, which she asked to be effective from 3 May 2004. The claim was refused on 9 August 2004.

Adjudication

6. The decision-maker refused the claim on the ground that the claimant did not satisfy the residence condition for state pension credit. The claimant exercised her right of appeal. The tribunal dismissed her appeal, but the chairman gave her leave to appeal to a Commissioner.
7. The appeal was referred to me for case management directions. I gave directions for the parties to make observations; each was to have one month. I also indicated my provisional view that the tribunal had misdirected itself in law and that I should be able to substitute a decision without the need for a rehearing.
8. The Secretary of State made two sets of observations. The first invited me to substitute a decision favourable to the claimant without reasons. The second contained slightly different reasoning. It was also favourable to the claimant, but asked me to give reasons for my decision. The claimant's representative responded. Unfortunately, I could not read all that he had written. Accordingly on 15 June 2004, I gave a direction allowing him one month in which to clarify what he had written. I also said that I was not at that time persuaded by the Secretary of State's observations. I invited him to take this into account in making his response. Despite my direction, the Commissioners' office allowed the representative two months in which to reply. It then sent a reminder, allowing him a further month, although it is no longer standard practice to issue reminders. The result is that the claimant's representative had three months in which to respond and has been reminded that he has the chance to do so. Despite this, he has not responded. I must, therefore, deal with the appeal on the basis of what is before me. I cannot take account of the representative's written observations because I cannot read them.

The tribunal's reasoning

9. The key sentence in the chairman's statement of her reasons for the tribunal's decision reads:

'The Tribunal decided that an ordinary interpretation should be placed upon the word "resident" and that the Appellant must be physically present in the UK for the clock to run towards the completion of a 5 year period.'

The first part of that sentence is correct but the second part is not. I now explain why.

The law

10. The claimant is a person who is subject to immigration control as defined by section 115 of the Immigration and Asylum Act 1999. That provision applies to state pension credit by virtue of an amendment made by section 4(2) of the State Pension Credit Act 2002. [This amendment has not been noted in the standard reference work used by appeal tribunals.]
11. Accordingly, the claimant is only entitled to claim state pension credit if she falls within one of the exceptions to section 115. The only relevant exception is provided by regulation 2(1) of, and paragraph 3 of the Schedule to, the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, as amended. This applies if the claimant has been resident in the United Kingdom for a period of at least five years from the date when she entered the United Kingdom or when the maintenance undertaking was given in respect of her, whichever is later. In this case, the maintenance undertaking was signed in March 1996 and the claimant entered the country in October 1996. The five years runs from the date of entry.
12. The period of five years need not be a single period. It can be made up of several shorter periods. See paragraphs 74 and 75 of my decision in R(IS) 2/02.
13. The issue is whether the claimant remained resident in the United Kingdom during her absences abroad. I am not aware of any direct authority on this issue. the tribunal was referred to the decision of the Court of Appeal in Shah v Secretary of State for Social Security, on appeal from my decision; it is reported as part of R(IS) 2/02. It is clear from the facts of that case, as stated in the Court of Appeal in paragraphs 4, 5, 11 and 12, that the Department ignored periods of absence when calculating the 5 year period. However, the Court of Appeal did not have to decide whether that was correct. Nor did the court have to investigate the circumstances of the claimant's absence. That case is no authority on the point I have to decide. Also, the circumstances of the absence were different from this case - if I recall correctly, the claimant in Shah was delayed by ill health during a trip to Turkey.
14. I agree with the tribunal's chairman that the word 'resident' must be given its ordinary meaning. I see no reason to give it any other meaning. However, in its ordinary meaning a person does not have to be physically present at a place in order to be resident there. Whether a person is or is not resident in a particular place during a period of physical absence depends on a calculus consisting of the duration and circumstances of the absence.
15. Almost everyone is absent from their home at some time or other. The only exceptions are those who are housebound and even they may have to go to hospital. It is irrelevant whether the person remains in this country or is absent abroad; the principles are the same. Absences occur for a variety of reasons – the person may be socialising, working, looking for work, seeking medical treatment, claiming a social security benefit, on holiday and so on.
16. Some absences do not affect residence. The absences that I have just listed do not usually affect a person's resident for the simple reason that they are not incompatible with the person remaining resident in a particular place. The length of these absences varies according to the purpose. Of itself, their length is not usually significant. So a holiday, even one as long as three months, would not of itself alter a person's residence.
17. Some absences do affect residence, regardless of the length of the absence. Suppose that Angela and Ralph have lived as a couple for several years. Angela has discovered that Ralph is having an affair. Ever since the couple have repeatedly quarrelled. Eventually, Angela packs her bags, throws her keys at Ralph and tells him that she is living their home for ever. In those circumstances, Angela would probably cease to be resident there as soon as she walked out. The reason is that the circumstances of her absence are not compatible with her remaining resident in the home.
18. Some absences do affect residence, simply on account of their length. Suppose that a university professor takes a sabbatical and goes with her family to Australia to carry out research. The circumstances of her absence show that she is likely to return. If the trip were short, say a few weeks, she would surely remain resident here while away. But if the trip were longer, say for a year, it is likely that she would no longer be resident here while away. The reason is that the absence is too long to remain compatible with residence here for the time being.

The law applied to the facts of this case

19. In this case, the claimant has been absent from the United Kingdom for three periods. Each period has been longer than a year. The reason for the absence in each case has been so that the claimant could care for her elderly parents who still live in Pakistan. There is no evidence of her intentions, but I infer that she at all times intended to return to the United Kingdom and that she has intended to have her home here since she arrived in 1996. Those are the bare facts.
20. I would not classify going to care for elderly relatives in Pakistan as a circumstance that of itself is incompatible with continuing residence in the United Kingdom. It is in the claimant's favour that she has never intended to abandon the United Kingdom permanently. However, I consider that the lengths of the absences are significant and the key factual point in this case. The periods of absence have lasted for almost 17 months, almost 14 months and 21½ months. I must consider each of those periods individually. I have done so and do not consider that any of those periods, not even the shortest, is compatible with the claimant remaining resident in the United Kingdom during her absence in Pakistan.

Disposal

21. I allow the appeal because the tribunal's chairman misdirected herself on the law. I must set aside the tribunal's decision, but do not need to direct a rehearing. I can and do substitute the decision that the tribunal should have made. It is to the same effect as the one actually made by the tribunal, but it is based on different reasoning.

Signed on original on 21 September 2005

Edward Jacobs Commissioner